Wilson v. C.I.A.

• Decision Date: 12 November 2009
• Docket Number: Docket No. 07-4244-cv.
• Citation: 586 F.3d 171
• Parties: Valerie Plame WILSON, Simon & Schuster Inc., Plaintiffs-Appellants, v. The CENTRAL INTELLIGENCE AGENCY; Leon E. Panetta, in his official capacity as Director of the Central Intelligence Agency; and Dennis C. Blair, in his official capacity as Director of National Intelligence,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

586 F.3d 171

Valerie Plame WILSON, Simon & Schuster Inc., Plaintiffs-Appellants, v. The CENTRAL INTELLIGENCE AGENCY; Leon E. Panetta, in his official capacity as Director of the Central Intelligence Agency; and Dennis C. Blair, in his official capacity as Director of National Intelligence,^*

Defendants-Appellees.

Docket No. 07-4244-cv.

United States Court of Appeals, Second Circuit.

Argued: January 8, 2009.

Decided: November 12, 2009.

David B. Smallman, Smallman & Hans LLP, New York, NY, for Plaintiffs-Appellants.

Benjamin H. Torrance, Assistant United States Attorney (Beth E. Goldman, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, New York, for Defendants-Appellees.

R. Bruce Rich and Jonathan Bloom, Weil, Gotshal & Manges LLP, New York, New York, for Amici Curiae Association of American Publishers, Inc., American Booksellers Foundation for Free Expression, American Society of Newspaper Editors, Association of Alternative Newsweeklies, Association of American University Presses, Freedom to Read Foundation, Magazine Publishers Association, Public Citizen, Inc., Publishers Marketing Association, Radio-Television News Directors Association, Reporters Committee for Freedom of the Press, and Society of Professional Journalists, in support of Plaintiffs-Appellants.

Before: KATZMANN and RAGGI, Circuit Judges, and KEENAN, District Judge.^**

Judge KATZMANN concurs in the judgment of the Court and files a separate concurring opinion.

REENA RAGGI, Circuit Judge:

Plaintiffs Valerie Plame Wilson, a former employee of the Central Intelligence Agency ("CIA" or the "Agency"), and Simon & Schuster Inc., the publisher of her memoir, Fair Game: My Life as a Spy, My Betrayal by the White House (2007) ("Fair Game"), sued the CIA, the CIA Director, and the Director of National Intelligence in the United States District Court for the Southern District of New York (Barbara S. Jones, Judge) under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq., for alleged violations of the First Amendment. To vindicate their asserted constitutional rights, plaintiffs sought an order precluding defendants from enforcing a decision by the CIA's Publication Review Board forbidding publication of any passages in Ms. Wilson's memoir relating to her possible pre-2002 service with the Agency.¹ On cross-motions for summary judgment, the district court concluded that plaintiffs could not demonstrate a First Amendment violation and entered judgment in favor of defendants. See Wilson v. McConnell, 501 F.Supp.2d 545 (S.D.N.Y.2007).

Plaintiffs appeal, arguing that the district court erred when it determined, as a matter of law, that because any facts relating to Ms. Wilson's possible pre-2002 service with the CIA remained properly classified, the Agency could, consistent with the First Amendment, forbid her from disclosing such information under the terms of a secrecy agreement that was a condition of her Agency employment. Plaintiffs assert that two reasons mandate a different conclusion: (1) the CIA itself "officially disclosed" the dates of Ms. Wilson's pre-2002 Agency service in a letter sent to her on February 10, 2006; and (2) Ms. Wilson's pre-2002 dates of service are, in any event, now a matter of such widespread public knowledge as to render unreasonable the Agency's insistence on maintaining the information as classified.

The record does not support plaintiffs' official disclosure claim as it was Ms. Wilson, and not the Agency, that permitted the information at issue to be revealed to the public. Although the CIA may have been negligent in communicating personnel information to Ms. Wilson without proper classification, the information only became public when Ms. Wilson — knowing that the CIA was insisting on maintaining the secrecy of her service dates — nevertheless authorized a member of Congress to publish the CIA communication in the Congressional Record. See infra at 187-91.

We also conclude that evidence of public disclosure does not deprive information of classified status and that the Agency has demonstrated a reasonable basis for maintaining information about Ms. Wilson's pre-2002 Agency service as classified. Accordingly, because the information at issue on this appeal remains properly classified, and because Ms. Wilson is obligated by the conditions of her employment with the CIA not to disclose classified information, plaintiffs' First Amendment claim fails as a matter of law. We therefore affirm the award of summary judgment entered in favor of defendants.²

I. Factual Background

This is no routine employer-employee dispute. Rather, it involves highly publicized actions by all three branches of the federal government. Although we here review only those facts necessary to our resolution of the issues raised on this appeal, that discussion is necessarily lengthy.

A. The Initial Public Disclosure of Valerie Wilson's CIA Employment

During his 2003 State of the Union address, President George W. Bush told Congress that "[t]he British Government has learned that [Iraq's dictator] Saddam Hussein recently sought significant quantities of uranium from Africa." Address Before a Joint Session of Congress on the State of the Union, 1 PUB. PAPERS 82, 88 (Jan. 28, 2003). A public debate ensued regarding the accuracy of this assertion. See generally Wilson v. Libby, 535 F.3d 697, 701-02 (D.C.Cir.2008) (describing debate), cert. denied ___ U.S. ___, 129 S.Ct. 2825, 174 L.Ed.2d 552, 77 U.S.L.W. 3506 (June 22, 2009); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1143 (D.C.Cir.2006) (same). On July 6, 2003, The New York Times published an op-ed piece written by plaintiff Valerie Plame Wilson's husband, Joseph C. Wilson IV, a former foreign service officer who had represented the United States in various capacities, including deputy chief of mission at the U.S. Embassy in Iraq from 1988 to 1991 and U.S. ambassador to Gabon from 1992 to 1995. See JOSEPH WILSON, THE POLITICS OF TRUTH: INSIDE THE LIES THAT PUT THE WHITE HOUSE ON TRIAL AND BETRAYED MY WIFE'S CIA IDENTITY 518 (2004). In his op-ed piece, Mr. Wilson disclosed that, in 2002, the CIA had sent him to Africa to assess the accuracy of intelligence indicating that Niger had sold uranium yellowcake to Iraq in the late 1990s. See Joseph C. Wilson IV, What I Didn't Find in Africa, N.Y. TIMES, July 6, 2003, § 4, at 9. Mr. Wilson stated that, based on his investigation, he determined that "it was highly doubtful that any such transaction had ever taken place," and that he had so informed the CIA in March 2002, nine months before President Bush's 2003 State of the Union address. Id. Mr. Wilson suggested that if the Bush Administration ignored his report "because it did not fit certain preconceptions about Iraq, then a legitimate argument can be made that we went to war under false pretenses." Id.

Eight days later, syndicated columnist Robert Novak commented on Mr. Wilson's oped piece and, in doing so, revealed Ms. Wilson's employment with the CIA: "[Joseph] Wilson never worked for the CIA, but his wife, Valerie Plame, is an agency operative on weapons of mass destruction. Two senior administration officials told me that Wilson's wife suggested sending him to Niger to investigate" the intelligence regarding Iraq's attempted uranium purchases. Robert D. Novak, Mission to Niger, WASH. POST, July 14, 2003, at A21.³

B. The CIA's Official Acknowledgment of Ms. Wilson's Post-2002 Service with the Agency

At the time of the Novak disclosure, Ms. Wilson was in fact a "covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States." Unclassified Summary of Valerie Wilson's CIA Employment & Cover History at 1, United States v. Libby, Cr. No. 05-394 (D.D.C. May 25, 2007). As plaintiffs acknowledge, Ms. Wilson's "employment affiliation with the CIA" was then "highly classified." Appellants' Br. at 6.

The revelation of Ms. Wilson's CIA employment caused a public outcry, leading to the appointment of a special prosecutor to investigate whether any government employees had violated federal law by disclosing the identity of a covert agent without authorization. See 50 U.S.C. § 421. As a consequence, the Agency "rolled back" Ms. Wilson's "cover" — i.e., officially disclosed her status as a CIA employee — in three stages. See Declaration of CIA Deputy Director Stephen R. Kappes at 4 (July 18, 2007) ("Unclassified Kappes Declaration").⁴ First, in December 2003, "as a result of the [Novak column] and subsequent media reporting of Ms. Wilson's relationship with the CIA," the Agency "lifted Ms. Wilson's cover effective 14, December 2003." Id. (emphasis added). Second, in February 2004, the Agency "rolled back [Ms. Wilson's] cover effective 14 July 2003, the date of the [Novak disclosure]." Id. (emphasis added). Third, in October 2005, to facilitate the prosecution of I. Lewis Libby, the Vice President's Chief of Staff, for perjury and obstruction of justice,⁵ "the CIA, exercising its discretion under section 3.1(b)" of Executive Order 13,292, "determined that the public interest in the disclosure of Ms. Wilson's employment and cover status" for the period beginning January 1, 2002 — i.e., the year of her husband's trip to Niger — "outweighed the damage to national security that might reasonably be expected from disclosure" of that information, and "lifted and rolled back Ms. Wilson's cover" as of that date. Id.⁶ Thus, the CIA officially disclosed that, as of January 1, 2002, Ms. Wilson was working for the CIA in its Counterproliferation Division, where she served as chief of the unit responsible for weapons proliferation issues related to Iraq. See Unclassified Summary of Valerie Wilson's CIA Employment and Cover History at 1, United States v. Libby, Cr. No. 05-394 (D.D.C. ...